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Editorial Memorandum: Judicial Nominees and the State of the Union

To: Interested Parties
From: Marge Baker, People For the American Way
Re: Judicial Nominees and the State of the Union
Date: January 25, 2011

While it’s not clear exactly which Supreme Court Justices will attend President Obama’s State of the Union address tonight, it is clear that at least some of the Court’s conservative members agree with the President on one pressing issue: the need to hasten the confirmation of judges to the federal bench.

Currently there are 101 vacancies on the federal bench, accounting for more than 11% percent of all Circuit and District Court seats. The reason for this state of affairs is clear: the Senate has failed to confirm far too many of President Obama’s well qualified and often utterly uncontroversial nominees. At the end of the last term, 19 nominees were left waiting for votes—many of which had been pending for months.

On the occasions when it has confirmed nominees to the bench, the Senate has slowed down the process to the point of absurdity. During the first two years of the George W. Bush administration, District Court nominees were confirmed in an average of 25 days. Under President Obama, the wait has averaged 104 days. For Circuit Court judges, the time has increased six-fold, from 26 days to 163 days on average.

Far from being a partisan issue, observers from across the political spectrum have expressed concern about the harm being done to our system of justice. Among the highest profile critics of the situation are two members of the U.S. Supreme Court.

In an interview with the Los Angeles Times, Justice Anthony Kennedy said “It's important for the public to understand that the excellence of the federal judiciary is at risk,” when so many vacancies exist on the bench. Chief Justice John Roberts, in his State of the Judiciary Report, called the delay in confirming new jurists a “persistent problem” and that there is “an urgent need for the political branches to find a long-term solution to this recurring problem.”

The beginning of a new Congress offers an opportunity for a fresh start on judicial nominations. Senate leaders would be wise to take it.

By stepping back from procedural gamesmanship, Republican senators can go a long way towards repairing our judiciary. In the last Congress, demands for time consuming cloture votes on nominees with broad bipartisan support ground the confirmation process to a halt. Letting go of that strategy would help well qualified nominees be seated on the federal bench and ensure that cases brought to the courts are decided in a timely, considered manner.